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Criminal Revision No. 948 of 1968, decided on 9th .ianuary 1969.

Credibility of witness‑Not divisible‑Witness implicating three persons‑Evidence in respect of two accused disbelieved and Court acquitting them‑Conviction of third accused, in circumstances, not upheld.

Private defence, right of Property in possession of accused--‑ Complainant committing criminal trespass and in ensuing scuffle receiving knife injuries evidence on record showing sharp weapon injuries on person of accused as well‑Accused, in circumstances, held, had right of defence of person as well as property.

Raza Muhammad v. The State P L D 1965 Kar. 637 rel.

Allah Wasaya Malik for Petitioner.

Mufti Nazar Muhammad for A.‑G. for the State.

Dates of hearing : 17th and 18th December 1968.

Muhammad Akhtar was convicted by the Sub‑Divisional Magistrate, Bhakkar, under section 307, P. P. C. and sentenced to undergo rigorous imprisonment for two years and also to a fine of Rs. 100 and in default to undergo further rigorous imprisonment for one year. He was further required to execute a bond for one year under section 106, Cr. P. C. in the sum of Rs. 1,000 with cane surety in the like amount for keeping peace. His co‑accused Abdul Aleem and Saif‑ul‑Islam were acquitted. His appeal failed and he has come in revision.

2. According to the prosecution, Abdul Latif (P. W. 1) heard an alarm at about digar time on the 22nd of September 1966, when he was sitting in front of Ilyas Hotel in Kallurkot. Rushing to the spot he found the petitioner and Chiragh (P. W. 2) exchanging abuses. The petitioner was throwing away the fuelwood placed at the spot by Chiragh P. W. and the latter was protesting. The two acquitted accused also arrived and exhorted the petitioner to kill Chiragh P. W Both of them secured Chiragh P. W. and the petitioner gave him a knife blow on the chest. Chiragh P. W. fell down unconscious. Muhammad Ali (P. W. 3), Muhammad Ramzan and Darbara (father of Chiragh P.W.) also arrived to witness the occurrence. Chiragh was taken to the Civil Dispensary, Kallurkort where he was medically examined on the same afternoon at 5‑10 p.m. bay Dr. Shahid tiussain (P. W. 6), who found one incised wound 1/ " x 1/3" into lung tissue deep, on the left side of the chest. Abdul Latif P. W. Book the medico‑legal certificate Exh. P. D. to Police Station Maibal where he lodged the F. I. R. Exh. P. A. on the same evening at 11‑30 p.m. after covering a distance of nine miles.

3. The petitioner in his statement under section 342, Cr. P. C. denied the prosecution version of the occurrence and stated that the place of occurrence was under his possession where his bus and taxi used to be parked. On the day of occurrence Chiragh P. W. and his father had gone to the spot to take possession of the site by placing pieces of wood there. He did not allow the same. Chiragh P. W. injured him with a knife and during the scuffle he also received an injury. He produced in support of his version. Zahur Ahmad (D. W. 5) and Dr. Muhammad Aslani (D. W. 6) who had medically examined him at Mianwali on the 23rd of September 1966, at 12‑30 p.m. and had found on his person three contusion marks measuring 4" x ", 3" x " and " x " and a superficial incised wound " x " on the palmer surface and tip of the right index finger. The petitioner had also complained before him of pain on the back of neck. According to the doctor the injuries could be caused by scuffle.

4. The prosecution relied on the eye‑witness testimony of Abdul Latif complainant (P. W. 1), Chiragh Din, injured (P. W. 2), and Muhammad Ali (P. W. 3). As already mentioned, Dr. Shahid Hussain (P. W. 6) proved the medico‑legal certificate Exh. P. D. in respect of Chiragh P. W. and A. S. I. Muhammad Bakhsh (P. W. 7) had investigated the case.

5. .The learned Sessions Judge did not rely on the eye witness testimony of Abdul Latif (P. W. 1) and Muhammad Ali (P. W. 3) both of whom, in his opinion, were inimical. He, however, relied on the testimony of Chiragh P. W., who was the injured person in the case, as he had no previous enmity with the petitioner. In the opinion of the learned Sessions Judge, the only point for consideration in the appeal was whether the petitioner had sustained injuries at the hands of the complainant The learned Sessions Judge agreed with the learned trial Magistrate that the injuries on the person of the petitioner were self‑inflicted and that the defence version had not been put to the prosecution witnesses under cross‑examination.

6. The reasons given by the learned Sessions Judge for discarding the eye‑witness testimony of Abdul Latif and Muhammad Ali P. Ws. were not questioned for the State. In my opinion, the learned Sessions Judge has erred in holding that the only point involved in the case was as to whether the petitioner had sustained injuries at the hands of the complainant. The defence version was that Chiragh P. W. wanted to interfere with the established possession of the petitioner, that in the scuffle Chiragh P. W. and his companions had inflicted injuries on the petitioner and that the injury received by Chiragh P. W. was also the result of the scuffle. The point as to whether the petitioner had a right of self‑defence, clearly arose in the case and was lost sight of by the learned Courts below. The learned Sessions Judge was also incorrect in observing that the defence version had not been put to the P. Ws. under cross‑examination. The state ments of P. Ws. 1, 2, 3 and 7 clearly indicate that the dafence version had been put try them. Again, it is not correct to hold on the present record that the injuries found on the person of the petitioner were self‑inflicted. Muhammad Bakhsh A. S. I. (P. W. 7) has stated that the petitioner had produced before him .his medico‑legal certificate regarding the injuries received by him. He does not state that the injuries were self -inflicted or self‑suffered. If the investigating agency had doubted the genuineness of these injuries the petitioner could have been, at that time, referred to another doctor for second opinion. The petitioner produced in his defence Dr. Muhammad Aslam (D. W. 6) who supported the medico‑legal examination report Exh. D. A. He was not at all cross‑examined by the prosecution on the point of the injuries being self‑inflicted or self‑suffered. Although he was cross‑examined as to whether the same could be the result of a scuffle. This clearly indicates that the prosecution was not doubting the genuineness of the injuries found on the person of the petitioner but was, in fact, suggesting (as was claimed by the defence) that the said injuries were the result of a scuffle. The injuries on the person of the petitioner were not mentioned in the F. I. R. None of the P. Ws. had claimed that these injuries were self‑inflicted. In fact, the eye‑witnesses contented themselves by merely pleading ignorance about them.

In the circumstances, I am unable to agree with the learned Courts below that the injuries found on the person of the petitioner were self‑inflicted.

7. I am also unable to support the conviction of the petitioner on the sole testimony of Chiragh P. W. as he had clearly implicated Abdul Aleem and Saif‑ul‑Islam, both of whom had been acquitted by the trial Court. It is admitted by A. S. I. Muhammad Bakhsh P. W. that the place in dispute was in the established possession of the petitioner and that the cause of the dispute was that Chiragh P. W. had tried to disturb that posses sion. The F. I. R. and the prosecution evidence do not dispute this possession as it is clear therefrom that the petitioner was in possession of the place in dispute. He had constructed a chhappar there and a bus and a taxi of his were being parked there. Chiragh P. W. had tried to disturb his possession by throwing away the pieces of wood and the petitioner had resisted this attempt. There was an exchange of abuses and a scuffle as a result of which the petitioner received injuries and Chiragh P. W. also received a knife injury. It ‑is claimed that the place in dispute belonged to the P. W. D., and that Chiragh P. W. had placed the pieces of wood thereafter obtaining the oral permission of the overseer. It is not established on this record that the place in dispute belonged to the P. W. D. No permission of any overseer is proved. Nor was the overseer himself produced as a prosecution witness in the case. Chiragh P. W. could not even give the name of this overseer. In these circumstances, it cannot be said that Chiragh P. W. can be accepted as a disinterested witness for basing a conviction against the petitioner on his sole testimony. He had himself tried his best to disturb the possession of the petitioner and had inflicted injuries upon him one of which was caused by a sharp‑edged weapon. He had also implicated the two acquitted accused.

8. The F. I. R. in the case had been lodged after a consider able delay and was not lodged by the victim or by his father Darbara who, according to the F. I. R., had also witnessed the occurrence, or by any other relative. It was instead lodged by Abdul Latif P. W. who is admittedly inimical to the petitioner. The delay in lodging the F. I. R. as also the disinclination of Chiragh P. W. or his relatives to move the police, also suggest that the prosecution were not sure of the guilt of the petitioner. Chiragh P. W. had also implicated two other persons and the credibility g of a witness is not divisible. The petitioner had also a reasonable case for the exercise of the right of self‑defence of his person as well as his property. There is no force in the observation of the learned Sessions Judge that the petitioner had no right of self -defence in respect of his property as he had time to have recourse to the public authorities. Since Chiragh P. W. had already committed criminal trespass, it was not necessary for the petitioner to sit idle and allow the complainant party to establish themselves into possession. Reliance was placed on Raza Muhammad v. The State(P L D 1965 Kar. 637). In these circumstances, the case against the petitioner is more than doubtful. I, therefore, allow this petition for revision, set aside the conviction recorded against the petitioner and the sentences awarded against him and order him to be set at liberty at once if not required in any other case.

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